Murphy v Media Protection Services Ltd

Section 297(1) of the Copyright Design and Patents Act 1988 cannot be applied to convict a person who uses a genuine foreign decoder card, authorised and marketed by the foreign broadcaster, to receive a broadcast in the United Kingdom where the person has paid for the card and has not avoided a charge applicable to reception. Territorial restrictions governing such cards may be unlawful under EU law. The position may differ for counterfeit or stolen cards, illicit devices within Directive 98/84/EC, and devices originating outside the European Union.

The appellant was convicted of two offences under section 297(1) of the Copyright Design and Patents Act 1988 after showing Premier League football broadcasts in her public house using a genuine NOVA viewing card issued for use in Greece. She had paid for the card but had no BSkyB subscription. The Portsmouth Crown Court dismissed her appeal but stated a case for the opinion of the High Court.

The High Court had previously answered the domestic-law questions adversely to the appellant and later referred EU-law questions to the Court of Justice. After the Court of Justice answered those questions in conjoined cases C403 of 2008 and C429 of 2008, the central issue was whether section 297(1) could lawfully be applied to the appellant’s use of the genuine foreign card.

1. Appeal allowed. The convictions were quashed.
2. The NOVA cards were genuine devices, authorised and marketed by the broadcaster. They were therefore not illicit devices within the meaning of Article 2E of Directive 98/84/EC. The judgment did not determine the position concerning counterfeit or stolen cards, or other illicit devices.
3. Article 56 TFEU, which was directly effective in EU law, precluded the application of section 297(1) to the appellant’s use of the cards. The territorial restrictions imposed on their use were unlawful under EU law.
4. The appellant had paid for the card. She had not avoided any charge applicable to its use and had not acted dishonestly. The statutory offence was therefore not made out.
5. The court left open the effect of the Court of Justice’s decision on the earlier finding concerning the place of broadcast for section 297(1). It also made no determination concerning cards or devices originating outside the European Union, or separate copyright and intellectual-property infringement issues. Costs were to be dealt with in a separate judgment.

• High Court (Administrative Court): The appeal by way of case stated was allowed and the convictions were quashed.
• Portsmouth Crown Court: The appellant’s appeal against conviction was dismissed, but a case was stated for the opinion of the High Court.
• Portsmouth Magistrates: The appellant was convicted of two offences under section 297(1) of the Copyright Design and Patents Act 1988.